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I. CO-OWNERSHIP

Consecutive Ownership Concurrent Ownership

Concurrent Ownership
1. present estate in real or personal property can be simultaneously owned by two or mere persons, each holding the
right to concurrent possession
a. Division among two or more persons results in possessory and Iuture interests, not co-ownership
i. Concurrent rights oI present or Iuture possession

%HREE %PES OF CONCURREN% IN%ERES%S

I. %ENAN%S IN COMMON (%IC)
1. Each Co-owner of holds an undivided, fractional share in the entire parcel of land; and each is entitled to
simultaneous possession and enjoyment of the whole parcel
a. Unity oI Possession Hallmark oI the tenancy in common (TIC)
2. The Simplest Concurrent estate most Irequent
3. Have separate and undivided interests in the property
a. The interest oI each is descendible and may be conveyed by deed or will
b. Each HS ccess to the entire property | 50 B 50|
c. They each have an undivided, Iractional interest in the entire property |1/2 interest to whole thing|
i. EX: and B TIC in FS in B 100 acres
1. 75 undivided interest and B remaining 25 interest Both entitled to all 100 acres
d. NO SURVIVORSHIP rights between tenants in common
i. Ex. T devises B 'to and B
1. and B are TIC
a. II conveys his interest to C, B and C are TIC
b. II B dies intestate, B`s heirs is a TIC with C
ii. Each TIC owns an undivided share oI the whole
1. The Four Unities are Irrelevant to TIC
a. and B can be TIC even iI they acquire their interests at diIIerent Times and by
diIIerent instruments, despite the Iractional size oI their shares are diIIerent
4. CREA%ION
a. ny conveyance or devise to two or more unmarried persons is Presumed to create a TIC, absent CLE#
language expressing an intent to create a Joint Tenancy
i. lso, can arise Involuntarily (Intestate Succession) (3 kids, each get 1/3 interest w/ other TIC)
b. TIC will also arise when (a) severance ends a JT or (b) divorce ends a Tenancy by the Entirety

5. %RANSFERABILI%
a. TIC has the right to Sell, mortgage, lease, or otherwise transIer all or part oI his interest w/o the consent oI
other co-tenants; and the transIer does NOT end the TIC
6. NO Right of Survivorship
a. Does NOT apply to a TIC the interest oI will pass to his devisees or heirs not to B (or vice versa)
i. Co-tenant may Devise his interest or allow it to descend by intestate succession
1. II dies his TIC interest will pass to his devisees or heirs NOT to B

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II. 1OIN% %ENAN%S (1%) (Must have the FU`s to be Created)
1. Each 1% has a Right of Survivorship, the right to sole ownership of the land if the other dies first, while alive
each has an equal, undivided right to simultaneous possession and use of the land
a. C and D Joint Tenants in FS in B
i. While live each own 50/50 II C dies, D now SOLELY holds FS in B
b. JTs were seen as Both
i. unit that owned the entire estate and
ii. Individuals who each owned an undivided Iractional share (moiety) in the estate
2. Have separate and undivided interests in the property
a. ccess to the entire property |C 50 D 50 but they both have an undivided interest in the whole thing|
3. Have the right of survivorship
a. The surviving JT will take the interest oI the decedent
i. C 50 D 50 - C dies D takes 100 oI B
1. The #OS does not create new rights in D the death oI C withdraws C`s interest Iorm the
estate leaving D as the only remaining owner
4. 1%s are a single owner; each tenant is seised per my et per tout (by the share or moiety and by the whole)
a. CL their interests be equal in all respects
5. Each owns the undivided whole of the property
a. When one tenant dies NOTHING PSSES to the surviving joint tenant or tenants
i. The estate simply continues in the surviving Joint Tenants; Ireed Irom the participation oI the decedent,
whose interest is extinguished
6. CREA%ION
a. CL: required the Four Unities in order to create and continue a valid JT at CL JT is deIault
i. FU`s Time; Title; Interest; Possession
1. %ime: JTs have to acquire Title at the same Time;
2. %itle: Title by the same Deed or Will; or by joint 'P
3. Interest: Each Interest had to be identical, each JT owned the same Iractional interest in the
same estate
4. Possession: Each JT had to have an equal right to possession oI the entire parcel
b. Modern: In most states a Concurrent Estate is considered a TIC unless the Intent to create another Estate is
clearly expressed
i. 'To E and F as Joint Tenants or 'to E and F as Joint Tenants w/ right oI survivorship
ii. Some J`s even require the Deed to Expressly state that there is a #OS created
7. %O END %HE 1%
a. The parties could agree and decide to split the JT up
b. conveyance to another party the JT will be severed
c. Each JT has the power to sever the JT and destroy the #OS by conveyance oI this or her JT interest to another
person (or themselves)
8. %RANSFERABILI%
a. JT interest is virtually inalienable
i. B/c oI the #ight oI Survivorship, a JT`s interest ends upon death, so the interest cannot be devised or
descend by intestate succession
ii. ny Intervivos conveyance oI a JT interest will Break the Unities oI Time and Title, Severing the JT;
the grantee receives merely a TIC interest 1% %IC iI any oI the FU`s are broken
9. 1% CANNO% pass his interest in a 1% by Will
a. JT`s INTE#EST CESES T DETH, a JT has NO INTE#EST that can pass by will

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10. Popular b/c at the death oI one oI the JT, probate oI the property is avoided
a. Probate the judicial supervision oI the administration oI the decedent`s property that passes to other at the
decedent`s death (super expensive)
b. JT avoids this b/c no interest passes on the joint tenants death
11. NO% DEVISABLE: Under JT the decedent`s interest vanishes at death, and the survivor`s ownership oI the whole
continues without the decedent`s participation
a. JT cannot pass her interest in a JT by will
i. B/c interest ceases at death, a JT has no interest that can pass by will
12. Creditor Action
a. II a creditor acts during a JT liIe, the creditor can seize and sell the joint tenant`s interest in property, severing
the JT
b. II the creditor waits until aIter the JT death, the decedent JT interest has disappeared, and there is nothing the
creditor can seize
1% avoids probate which is the huge advantage of 1% b/c probate is hugely expensive

Probate
1. Judicial supervision oI the administration oI the decedent`s property that passes to others at the decedent`s death
2. JT is the practical equivalent oI a will but at the JT`s death probate oI the property is avoided
a. JT avoids probate b/c NO INTE#EST PSSES on the JT`s death
b. The decedent`s interest vanishes at death, and the survivor`s ownership oI the whole continues w/o the
decedent`s participation
i. Thus popular, particularly among husband and wiIe
Straw Man
1. owning FS, would convey her entire interest to B, who would then convey to and C as Joint Tenants w/
right oI survivorship number oI states no permit an owner to create a joint tenancy through a Direct
Conveyance b/c this stupid rule could easily be avoided through shady transactions

FOUR UNI%IES (FU`s) NEEDED %O CREA%E 1% + %BE at CL iI one does not exist it then creates a TIC
1. %ime
a. The interest oI each joint tenant must be acquired or vest at the same time
2. %itle
a. Take by same instrument
i. ll joint tenants must acquire title b the same instrument or by a joint adverse possession
ii. joint tenancy can never arise by intestate succession or other act oI law
3. Interest
a. ll must have equal undivided shares and identical interests measured by duration
i. Have to take equal interest in the same type oI estate
4. Possession
a. Each must have a right to possession oI the undivided whole
i. TIC also has this but none oI the other 3
b. Iter a JT is created, one JT can voluntarily give exclusive possession to the other JT
Note:
1. II these FOU# UNITIES do NOT exist, a TIC is C#ETED; NOT a JT
2. Some states abolish the 4U`s and allow a JT to be created by stating EXPLICITLY the intent to create 1
3. II the 4U`s exist at the time the JT is created but are LTE# SE'E#ED; the JT TIC
4. JTs can change their interests into a TIC by a MUTUL G#EEMENT; destroying 1 oI the 4U`s
5. joint tenant can convert a JT TIC unilaterally by conveying his interest to a 3
rd
party
a. SE'E#S the JT as between the 3
rd
party and his cotenants b/c it destroys 1 or more oI the 4U`s
6. II JTs cannot reach a mutual greement
a. ny one oI the JTs can bring an action Ior Judicial Partition
%e court is now more concerned wit intent of te parties

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III. %ENANC B %HE EN%IRE% (%BE) (FU`s + Marriage)
1. Can be created only in Husband and WiIe
2. Like a JT needs the FU`s 5
th
the UNITY OF M##IGE TBE
3. The surviving tenant has the right oI survivorship
a. CL Husband WiIe hold S ONE PE#SON
1. Do NOT hold by the moieties
2. Both #E SEISED oI the ENTI#ETY
ii. NEITHE# husband nor wiIe can DEFET THE #IGHT OF SU#'I'O#SHIP oI the other by a
conveyance oI a moiety to a third party
1. Only a conveyance by husband and wiIe together can do so |both needed to convey|
2. One spouse Cannot unilaterally sever the Tenancy by the Entirety
3. Murder oI one spouse by the other TBE is severed and #OS is not enIorced
4. CREA%ION
a. #ecognized in about oI the states; many still Iollow the CL presumption that nay conveyance or devise to a
married couple creates a TBE even w/o the FU`s oI Time & Title are absent
i. II grantor attempts to create a TBE in two unmarried either:
1. JIT will be created b/c best approximates the grantor`s intent (minority)
2. TIC will be created b/c it is the deIault
5. Divorce terminates the tenancy by the entirety b/c it terminates the marriage
a. bsent some other agreement they then becomes a TIC
Note:
1. II an Instrument conveying property oI two or more persons is ambiguous
a. The presumption Iavoring a JT is BOLISHED in all states
i. w/ exception where conveyance is Irom Husband WiIe in some states
1. CL presumption TBE absent clear indication to the contrary
2. Other state presumption TIC or JT
2. Today a GRAN% OR DEVISE %O %WO OR MORE PERSONS CREA%ES A %IC
a. UNLESS an INTENT to create a JT is EXP#ESSLY DECL#ED
i. To B as JT and not as TIC JT
ii. To B Jointly Might not create a JT b/c jurisdictions don`t want to make 1 unless clear
b. Some states require an EXP#ESS P#O'ISION Ior SU#'I'O#SHIP in order to create a JT
i. To B as JT with the right oI survivorship
3. Unequal Shares: One oI the 4 unities oI equal shares Ior JT is not necessary to make a JT now can have unequal
shares iI that is the intent oI the parties
a. CL iI 1/3 share and B 2/3 share; B CNNOT JT; B TIC
b. Today iI 1/3 and B 2/3 oI purchase price and the parties intend the $ Irom sale oI the property to be
divided 1/3 and 2/3 and iI sold DU#ING their JOINT LI'ES JT & $ Irom sale 1/3 2/3


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SEVERANCE OF 1OIN% %ENANC

1. Conveyance of 1%`s Entire Interest
a. JT has the bsolute right to end or 'sever the JT w/o the consent (or sometimes even the knowledge)
oI the other cotenants
i. The CT conveys his interest to a 3
rd
Person
1. and B CT; B C and C as TIC

2. B cannot convert the 1% into a %IC w/o losing his interest in the estate; B could not convey his interest Irom
himselI (as a JT) to himselI (as a TIC) b/c seisin required 2 people
a. B could use a Straw Man; B conveys his interest to C (an intermediary 'straw man) which severed the
JT, and C conveys the resulting TIC interest back to B
i. Most courts allow a 1% to terminate the 1% by conveying his interest directly to himself
#iddle v. Harmon
b. Can lead to 1 JT deIrauding the other w/ impunity
i. H and W take title to B as JT; H secretly executes a deed conveying his interest to B, H places
the deed in a saIe deposit box
1. II H dies Iirst, the deed will be seen as having severed the JT during H`s liIetime
a. Thus, W is a mere TIC with B
2. II W dies Iirst, H simply destroys the hidden deed and acquires sole title to B
3. II , B, C are all JTs in B and C D; D is a TIC b/c he does not share the FU`s oI Time and Title w/ and B;
But C`s conveyance does NOT aIIect the Unities between and B
a. and B are still JTs; B is a hybrid Iorm oI ownership
i. D owns a 1/3 interest as a TIC; and B each own a 1/3 interest as JT
1. II dies Iirst, B and D will then be TIC, B owning 2/3 Interest and D 1/3

4. Lease or Mortgage Executed by One 1oint %enant
a. When will a CT`s transIer oI Less than his entire interest ever be a JT?
b. If One 1% leases the Common Property
i. A 1% has the power to execute a valid lease, but the lease does not effect a severance
ii. Lease subject to other cotenant`s right oI survivorship and ended when the lessor (JT CT) dies
1. Protects the good Iaith expectations oI the nonleasing CT that her survivorship right will
endure $wartzbaug v. $ampson (OC Boxing)
c. Other Courts Iind that the Lease eIIects a Permanent Severance b/c the unity oI interest is lost;
i. Policy oI encouraging alienability by eliminating the survivorship right

5. Mortgage
a. %itle %heory that a Mortgage transIers legal title to the mortgagee
i. A mortgage executed by one C% effects a Severance (1%) Mortgagee takes interest
1. B/c the Unities oI time and title have been broken
2. PP recognizing a severance protects the mortgagee by ensuring that the mortgage will
survive the death oI the mortgagor joint tenant

b. Lien %heory mortgage merely creates a lien
i. Find that NO severance has occurred b/c the Unities are intact 1% stays ROS
ii. Mortgagee Looses his Interest at the death of the 1% -
1. If other (nonmortgage 1%) dies first mortgage attaches to the whole property

6. Agreement between 1oint %enants
a. JT may be severed by agreement oI all CTs (usually w/ divorce in a TBE)
i. ssume that a divorcing spouse does not intend to preserve any right oI survivorship in the other
spouse, and thus tend to interpret ambiguous agreements as terminating the JT
b. An agreement where one of the C%s will occupy the common property does NO% a severance
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#iddle v. Harmon (Severance of 1% by Conveyance to oneself w/o Straw Man)
Mrs. #iddle wanted to sever the JT she had with her husband
1. Basic concept oI JT ONE estate taken JOINTLY; CL requires the 4U`s
2. Severance oI the JT extinguishes the principal Ieature oI that estate, THE #IGHT OF SU#'IO#SHIP
3. Each JT can convey his or her separate estate by way oI giIt or otherwise w/o the knowledge or consent oI the
other JT and to thereby terminate the JT
1. Her attorney should have used a straw but he didn`t
a. In C don`t have to use a straw
i. C is Iocused on intent to see iI a JT is created
1. Can create a JT by conveyance iI you make it clear you wanted a JT and not a TIC
2. But you couldn`t sever w/o a straw

2. R: One 1oint %enant may unilaterally sever the 1% without the use of an intermediary device
a. 1% CAN effect a SEVERANCE DES%RO RIGH% OF SURVIVORSHIP by conveyance of his or
her joint tenancy interest to another person or themselves
3. This case made it so one could sever a 1% w/o a straw man a new rule
a. Did this b/c today seisen is not necessary with the clot oI dirt representing the transIer etc.
i. Danger with this rule oI being able to unilaterally sever the JT
1. Fraud now becomes an issue and collusion could arise
Ways to sever the 1%
1. Use of a straw
a. II JT conveys to a 3
rd
party and that 3
rd
party reconveys to the same tenant, then the 4U`s are destroyed The
JT`s TIC
2. Voluntary Conveyance
a. Unilateral Conveyance to oneselI
b. Use oI a trust to terminate
3. Partition
Notes:
1. One can go and convey your interest w/o telling the other JT
2. CL cannot convey an existing interest then convey it in JT to yourselI and 3
rd
party b/c don`t have time or title
3. Even if the courts required one to record the severance of the 1% Problem of Notice to other 1%
a. Still don`t have to tell the other JT creates a problem oI the other JT not knowing that the JT was severed
b. One who thinks they have a #OS might not put in a will who the property would go to and could end up in
probate which JT is meant to avoid
4. II 1% die at the same time and cant decide who survived who
a. USD and approach is used
i. Unless there is clear and convincing evidence that one oI the JT survived the other by 120 hours
5. Murder severs the 1% and converts it into a tenancy in common
a. The killer loses his right oI survivorship in the decedent`s share

Harms v. $prague (Brother mortgage conveyance)
Rule: A mortgage of the property will not sever the 1% b/c it is a lien on the mortgagor`s interest in property rather
than a conveyance of title from mortgagor to mortgagee, doesn`t destroy the unity of title or the 1%
1. Majority - Some jurisdictions say a mortgage is like a lien and the JT will survive
a. lien on a JT interest in property will not eIIectuate a severance oI the JT, absent the conveyance by a deed
Iollowing the expiration oI a redemption period
b. JT is not severed when one JT executes a Mortgage on his interest in the property, since the unity oI title
has been preserved
c. Title to the property was not separated with the execution oI a trust deed but rather only upon execution and
delivery oI a master`s deed
2. Minority Mortgage is a transIer oI a title b/c the 4U`s are broken and the JT will be severed

%he mortgage will not survive the death of the mortgaging 1%
1. surviving JT succeeds to the share oI the deceased JT by virtue oI the conveyance which created the JT, not as
the successor oI the deceased
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2. %he property right of the mortgaging 1% (the non brother) is extinguished at the moment of his death
a. William (brother) gets a FS
b. The Simmons lost their security interest
c. Charles still owes 7,000 to the Simmons and he doesn`t get the interest he thought he would Irom John
Notes:
1. Some courts don`t Iollow Harms and say that a mortgage severs the JT
2. II W had died Iirst then J would have taken the whole thing and the mortgage would have been on the whole property
3. For any kind oI less-than-Iee-simple conveyance (mortgage, liIe estate, lease)
a. B are JT, and conveys some interest LESS than a Fee Simple (the interest) X;
4. 4 Possible Outcomes (to above where less than a FS is conveyed)
a. The conveyance oI the interest SE'E#S the JT
i. X and B are TIC until the interest ends, and then and B or their estates are TIC
b. The conveyance does NOT SE'E# the JT
i. II B survives , B takes Iree and clear oI the interest;
ii. II survives B, is subject to the interest
c. The conveyance does NOT SE'E# the JT
i. II B survives , B takes subject to the interest (B TIC with X Ior the period oI the interest)
ii. II B dies beIore , is subject to the interest
d. The conveyance results in a P#TIL O# TEMPO##Y SE'E#NCE
i. II dies beIore B, proceed as in (a)
ii. II survives B, proceed as in (b) or (c)
iii. II X dies Iirst, there is NO SE'E#NCE and and B remain JT

MUL%IPLE-PAR% BANK ACCOUN%S
1. Joint ccounts
a. ' and B or ' or B
b. Usually where may intend to make a present giIt to B oI the sum deposited in addition to
survivorship rights to the whole sum on deposit 'true joint tenancy
2. Convenience ccount
a. may intend B only have power to draw on the account to pay `s bills and not have survivorship rights
b. really intends that the account is owned by with a power in B to draw on the account during `s liIe
3. Majority of courts
a. The surviving JT takes the remaining deposit in a joint account unless there is clear and convincing
evidence that a convenience account was intended
i. The money was there just to help the other person convenience account
b. Most will say the joint account will belong to the parties in the amount that they paid in but can be
overcome with clear and convincing evidence
2. Nature oI the Joint account turns on the intent oI the parties, not the terms oI the agreement w/ the bank
a. During the liIetime oI the account holder, the amount on deposit is presumed to belong to each party in
proportion to his or her contribution to the account, absent clear/convincing evidence oI a contrary intent
i. During Life %IC: each party owns Iractional shares based on actual contributions
ii. Death 1%: The amount remaining on deposit at the death oI an account holder belongs to the
surviving party or parties, unless the terms oI the account speciIy otherwise
1. Law Presumes that the parties intended the #ight oI Survivor ship JT

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II. RELA%IONS AMONG CONCURREN% OWNERS

1. How the parties share the beneIits oI ownership with co-owners
2. #ules governing co-ownership should distribute land in a Iair manner the beneIits and burdens oI co-ownership
a. Keep eIIiciency and Iairness in mind with PAR%I%IONS the privileged oI each co-owner to transIorm
a concurrent estate into estates held in severalty

elfino v. Jealencis (Court performed a PIK b/c it was in the Best Interests of the Parties)
P wanted to subdivide land D lived on and used Ior D`s garbage collection company they owned as TIC

Problems with a Partition by Sale
1. The cash rich person could actually show up and then purchase the entire interest at the Iorced sale oI the property a
way to Iorce the party with less cash out
2. partition by sale is much easier to split up the land b/c each would get their share oI the land in that portion oI the
proceeds Irom selling the land
3. Court says cannot do a partition by sale and they will employ a partition by kind and do this b/c
a. Personhood - don`t want to force a cotenant to sell their land if they don`t want to

Partition by Sale (Factors that must be satisfied for the PBS > PIK)
1. The physical attributes oI the land are such that a PIK is impracticable or inequitable
2. The interests oI the owners would better be promoted by a partition by sale
a. Burden is on the party requesting a PBS to demonstrate that such a sale would better promote the owner`s
interests
Analysis
PBS would not best promote the interest oI the parties rather a PIK is better in this situation
1. I. PRAC%ICABILI% of physically partitioning the property
a. Here PIK is practicable b/c there are only 2 competing ownership interests
b. Courts look to the situation and location oI the parcel oI land, the size and area oI the property, the
physical structure and appurtenances on the property, and other Iactors
2. II. Determine whether a PBS promotes the BES% IN%ERES% of the parties
a. Not merely the economic gain oI one tenant, or a group oI tenants
b. II a TIC has been in actual and exclusive possession oI a portion oI the property Ior a substantial period
c. II a TIC has made her home on the property
d. II she derives her livelihood Irom the operation oI a business on this portion oI the property
i. Here, a partition by sale would Iorce the D to surrender her home, and jeopardize her livelihood
Physical attributes - Why PIK was better than PBS
1. Dwelling was not in the middle oI the land and would be easy to split up
2. Only talking about two groups makes it easy to physically divide the land

Best interest in the parties
1. Holding:
a. Since the property in this case may practicably be physically divided, and since the interests oI all owners will
better be promoted iI a partition in kind is ordered,
b. We conclude that the trial court erred in ordering a partition by sale, and that, under the Iacts as Iound, the D
is entitled to a partition oI property in kind
i. Partition in Kind (PIK) is a physical division oI the property among the parties or tenants
Notes:
1. Modern practice is to decree sales in partition actions in a great majority of cases
a. Either b/c the parties all wish it or b/c courts are convinced that sale is the Iairest method oI resolving the
conIlict
2. The Iact that the economic value oI the property as a whole would be less iI it were partitioned in kind is relevant
but not dispositive, especially in cases oI longstanding ownership coupled with emotional ties to the land
3. Alternative Approach
a. II a court orders partition, whether by sale or in kind, it might also order compensation (Owelty)
b. That partition in kind is impractical or wasteIul, and
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c. That sale would not protect the interests oI all parties,
i. Then the court may assign all oI the property to one or more oI the cotenants, provided they pay
the other cotenant(s) compensation in an amount set by the court (usually equal to FM')
Compensation (Owelty)
1. To make appropriate adjustments as to apply PIK
a. Ex: to compensate Ior the Iact that partition in kind results in one cotenant getting a more valuable part
than other cotenants, or that partition by sale yields a higher price than it otherwise would because one oI
the cotenants made certain valuable improvements
PAR%I%ION
1. When concurrent owners decide to terminate a cotenancy
a. II they agree on a division oI the property or the proceeds Irom its sale there are no problems
i. Termination will be accomplished through a voluntary agreement
b. II they do not agree
i. Equitable action is available to any JT or TIC
1. It is unavailable to tenants by the entirety
Partition by Sale
1. The land held in cotenancy is sold oII and proIits are divided among the cotenants per their share in the property
Partition in Kind
1. Is a physical partition oI the land divided between the cotenants (what happened in DelIino v. 'ealencis)
a. Rocking Chair
i. Cut it in halI
1. Shared custody probably rather have a PBS b/c then each would have pro rata share
PAR%I%ION
ny tenant in common or joint tenant may sue Ior judicial partition, which ends the cotenancy, distributes the
property among the Iormer cotenants as solely-owned property, and provides a Iinal accounting among them
bsent a contrary agreement, each cotenant has a right to obtain partition w/o proving any cause or reason
regardless oI any inconvenience, burden, or damage to other cotenants
4 Free Partition is essential to eIIicient use oI land and iI CTs are stalemated the property will not be used
Ior its most productive use

PAR%I%ION IN KIND (PIK)
1. PreIerred Technique is a Physical division oI the property into separate parcels divided among cotenants
a. II the value oI the parcels are not equal (Ior whatever reason) a court can equalize the distribution by
ordering a money payment called Owelty

PAR%I%ION B SALE (PBS)
1. II Physical division oI the land is Impossible, impracticable, or Inequitable, a court may order a Partition by sale
a. The property is sold and the sales proceeds are divided among the cotenants according to their respective
shares
i. Ex: It is usually impractical to divide a single-Iamily home
b. PBS usually Iorces poorer cotenants oII their land simply b/c they cannot aIIord to bid successIully
against the bidders oI the land (usually the majority CT)
2. The right to partition, is not bsolute
a. n agreement to restrict partition will be upheld iI the restraint on alienation it imposes is reasonable
under the circumstances

SHARING %HE BENEFI%S AND BURDENS OF CO-OWNERSHIP

$piller v. Mackeret Co-owners oI a warehouse in Tuscaloosa (Liability for Rent & Ouster)
1. They were both splitting the rent paid by the third party
2. II one cotenant does pay the other the one not getting paid can sue Ior the rent not paid (accounting)
3. General Rule in absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is
not liable to his cotenants for the value of his use and occupation of the property

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4. To make the other cotenant pay you have to have an ouster
a. Its not enough to just say get oII the land or pay me rent

R: %o be liable for rent the occupying cotenant must have denied his cotenants physical/demand right to enter
1. Have to be denied the right to enter and
2. Have to be denied the right to use the property; By one of the occupying cotenants
a. Simply requesting the occupying cotenant to vacate is not suIIicient b/c the occupying cotenant holds title to
the whole and may rightIully occupy the whole unless the other cotenant asserts their possessory rights
b. To be LIBLE Ior #ENT must have DENIED his cotenants the right to enter
c. There can be no denial oI the right to enter unless there is a DEMND or an TTEMPT to enter
3. When you as a cotenant have been ousted by not being allowed to enter your co-owned property then the
cotenant denying you entry will be liable for rent

OUS%ER (TWO FCTUL SITUTIONS)
1. 'P - The beginning oI the running oI the SOL Ior 'P
2. #ENT - The liability oI an occupying cotenant Ior rent to other cotenants
a. The two Iact situations require diIIerent elements oI prooI to support a conclusion oI ouster
i. labama a Iinding that the possessing cotenant asserted complete ownership oI the land to
support a conclusion oI ouster
3. Minority - claim oI BSOLUTE OWNE#SHIP and a DENIL oI the cotenancy relationship by the
OCCUPYING COTENNT aIter a Demand or Physical ttempt to enter the Property
4. Majority - OCCUPYING COTENNT #EFUSES DEMND OF THE OTHE# COTENNTS to be allowed
into USE ND ENJOYMENT OF THE LND aIter a Demand or Physical ttempt to enter the property
a. #EG#DLESS oI a claim oI bsolute ownership
4. Assertion of complete ownership Irom a composite oI activities like
b. #enting part oI the land without accounting,
c. Hunting the land, cutting timber,
d. ssessing and paying taxes and
e. Generally treating the land as iI it were owned in Iee Ior the statutory period
5. ssertion oI Complete ownership (other courts)
I. Look to more O'E#T CTS
i. sale oI property under a deed purporting to convey the entire Iee denies denied denial deny

Cotenant v. %hird party use
1. II cotenant using the property - Have to have an ouster to get reasonable rent
2. II Third party is using the property then a cotenant can sue Ior accounting iI they were not paid their due rent Irom the
other cotenant collecting the rent
a. cotenant who collects Irom third parties rents and other payments arising Irom the co-owned land must
account to cotenants Ior the amounts received, net oI expenses
3. It is like this b/c the court does not want to get involved unless it has to
a. Down Iall to this is that you have to determine whether there was an ouster or not

Majority rule
1. Cotenant who is in possession oI concurrently owned property does not have to pay a proportionate share oI the
rental value to the cotenants out oI possession, unless there has been an ouster
a. Have to have an ouster in order to charge rent Irom a cotenant
b. II cotenants is charging a third party rent then the other cotenants are owed their share oI the rent
Irom the third party and can sue the cotenant collecting the rent Ior accountancy

Minority rule
1. Cotenants in possession have to pay rent to cotenants not in possession even without an ouster
a. Note: simply requesting the occupying cotenant to vacate is not suIIicient b/c the occupying cotenant
holds title to the whole and may rightIully occupy the whole unless the other cotenants assert their
possessory rights

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Fiduciary Duties
1. Generally, Cotenants are NOT FIDUCI#IES with respect to each other
a. Each is expected to look aIter his/her interest
b. Some situations the courts treat the cotenants as having FD
i. E.g. and B are members oI the same Iamily (brother/sister)
1. Court may Iind that the relationship oI a FMILIL T#UST and conIidence requires
that each act as Iiduciary with respect to the other
2. TWO situations where FD MY be imposed
a. Where one cotenant buys in concurrently owned property at a mortgage Ioreclosure or tax sale and then
asserts a superior title against cotenants
i. Courts compel the buyer to hold the superior title Ior the beneIit oI all the cotenants provided they
reimburse the buyer
b. claim oI 'P where cotenants are kindred (FMILY)
i. The court will treat the cotenant in possession as a Iiduciary, who can claim 'P only where his
claim oI SOLE OWNE#SHIP is so unequivocal and notorious as to put his cotenants on
CTUL NOTICE oI a hostile claim
1. 'P against cotenants is not easily achieved

$wartzbaug v. $ampson OC Boxing ring (Cannot Lease more than share oI the JT/TIC)
1. ction to cancel two leases executed by Swartzbaugh as lessor
2. Husband and WiIe own 60 acres oI land in OC as Joint tenants w/ #OS
3. Sampson, a boxing promoter approaches the husband about building a boxing ring pavilion
4. Mrs. S is trying to cancel the lease where the lessee is in the exclusive possession oI that portion oI the property
5. A Cotenant can lease the property w/o the permission of the other cotenant

R: Cotenant cannot lease to the lessee the exclusive use of the property Sampson cannot exclude Mrs. S from
entering the property that was leased to him - his interest is no more than that of the cotenant that leased to him
1. II she wanted to stop the boxing
a. She sue Ior partition in kind or partition by sale
b. II Sampson ousted her then he would have had to pay reasonable rent to her
c. Or she could sue Ior accounting and get her share oI the rent
2. II she though the rent was too low but was ok with the boxing ring
She could have gone and provoked an ouster Irom Sampson and then get the reasonable rental value that
could be higher than the lease
General Rule One joint tenant may make a lease oI the joint property, but this will bind only his share oI it
1. The act oI one joint tenant WITHOUT EXP#ESS O# IMPLIED UTHO#ITY Irom or the consent oI his
cotenant CNNOT BIND O# P#EJUDICILLY FFECT the rights oI the LTTE# cotenant
2. Where one JT in possession leases all oI the joint property w/o the consent oI his cotenant and places the lessee in
possession
a. This gives the lessee the right that the cotenant, the lessor, had been enjoying but does not provide Iurther
rights Irom that oI the cotenant lessor
b. The other cotenants have all oI their original rights against the other cotenants with the lessee
3. Each joint tenant, during the existence oI the joint estate, has the right to convey, mortgage or subject to a
mechanic`s lien an equal share oI the joint property
4. A lessee in possession of real property under a lease cannot dispute his landlord`s title nor can he hold
adversely to him while holding under the lease

Think about the remedies what are you trying to get out oI the deal as the cotenant
O Is it a cotenant or third party
O Do you want to provoke an ouster or just sue Ior accounting
O Do you want them out
4 Sue Ior Partition in kind or by sale
What if Mr. S (C% Lessor) dies during Sampson`s lease term?
O It would be extinguished at Mr. S death and she would take in entirety in interest
O The lease would cease to exist and Sampson would have to re-negotiate the lease
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Repairs and improvements
1. Repairs
a. Majority - Don`t have a right oI contribution even Ior necessary repairs in the absence oI an agreement
b. Minority - Provides Ior contribution iI the repairing cotenant gives notice to the others
2. IMP#O'EMENTS
a. s with #EPI#S, a Cotenant has No right to contribution Irom other cotenants Ior expenditures Ior
improvements
b. General #ULE: the interests oI the improver are to be protected iI this can be accomplished W/O
DET#MENT to the interests oI the other cotenants
i. II there is a P#TITION IN KIND Can be reimbursed Ior improvements iI will not cause a
detriment to the other cotenants interests
1. P#TITION by SLE the proceeds are distributed to award to the improver the added
value (iI any) resulting Irom his improvements
Rent and Profits
1. cotenant who collects Irom third parties rents and other payments arising Irom the co-owned land must account
to cotenants Ior the amounts received, net oI expenses
a. bsent ouster the accounting is usually based only on actual receipts, not Iair market value
b. II CT is ousted then the accounting is based on FM'

%axes, Mortgage Payments, and other Carrying Charges
1. cotenant paying more than his share oI taxes, mortgage payments, and other necessary carrying charges
generally has a right to contribution Irom the other cotenants
a. t least up to the amount oI the value oI their share in the property
i. Unless the tenant who pays has been in sole possession oI the property, and the value oI the use
and enjoyment which he has equals or exceeds such payments, no action in any Iorm Iro
contribution will lie against the others
Problems From Class
O has FS in B. O devises B 'to may son Ior liIe, then to `s children and their heirs, and iI any child dies in the
liIetime oI , such child`s share shall go to his or her children who survive .
LiIe Estate WP To WL For LiIe PP LE ends at the death oI
`s Children
4 FI or PP
4 FI
#emainder or EI
O It`s a #emainder b/c it is capable oI becoming possessory at the natural term.
'ested #emainder or Contingent #emainder
No CP and in an ascertained person 'ested #emainder subject to open b/c the class is still open
b/c B and C`s interest could be divested by having more kids
'#SO in
O Grandkids
O SHEI in FS
Then B dies, leaving husband D, and a child, E. B devises all oI her property to D
4 D
4 F 'ested #emainder Subject to Open in FS
4 G 'ested #emainder Subject to Open
Then dies
4 E, F, and G own B
What interests to they have in co-tenancy
O Court usually assumes TIC
4 Here they are TIC
n 1/3 undivided interest as TIC PP FS
Measure the time at when they take at the oI the conveyance in this situation when O dies time is when the
conveyance is made or devised, not when they take possession
4 Here maybe time is not satisIied but the other 3 should be, but b/c it was devised
4 E, F, and G have a 1/3
rd
Interest in B as tenants in common in FS
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E, F, and G decide they want to create a joint tenancy. How do they do so?
1. Could convey to a Straw they would then have to be very careIul to have the words that they want a JT with the
#OS to satisIy all jurisdictions
Later E decides he wants to give his interest to his son Q, but doesn`t want him to have it until he, E, dies.
1. Could use a straw or in some Jurisdictions could convey to himselI
a. E would have a 1/3 interest as TIC and G and F would have a 2/3 undivided interest as JT
2. What iI G dies? Who owns B?
a. F would have 2/3 JT; E would have 1/3 interest as TIC
i. So now F would have 2/3 interest and E would have 1/3 interest as TIC
3. What iI E dies?
a. F would have 2/3 UDI and Q would have 1/3 UDI as TIC
What iI Q is out oI possession and F (who is also not in possession) decides to lease B to Marvin to use as a residence
(there is a house on B). Can F do that?
1. Yes, can unilaterally lease the land
2. Can Q obtain a share oI the rents
a. Q would bring an action Ior accounting Ior 1/3 oI the receipts oI the rent
What iI M is F`s close buddy and F rents to Marvin at a below market rental rate is Q stuck with a share oI the below
market rental rate?
1. No, iI he provokes an ouster then he can be entitled to 1/3 oI the FM' oI rental
ssume that the lease was not made, iI Q just needs a large amount oI money, what can he do
2. Q can request a Partition by Sale
a. Courts usually preIer a PIK
i. PIK
ii. PBS
1. II land is diIIicult to divide the land
a. What does the land look like
2. Where is the house or dwelling iI the property is land
3. The value oI the property
a. Is it greater as a whole or is it greater split up

What iI F had to make improvements and repairs to the house beIore he could rent it to M? Can F get reimbursed
Ior improvements and repairs aIter a partition by sale or kind
4 Improvements may get reimbursement Ior the increase in FM'
4 #epairs depends on the jurisdiction look those up
What iI F had to pay all the property taxes on B aIter Q and F owned B as tenants in common in
4 Yes will be reimbursed

RIGH%S AND DU%IES OF CO%ENAN%S
1. Relationship between Cotenants
a. Law can treat them as relatively independent actors; e.g. one cotenant cannot contract on behalI oI other
cotenants
b. Where a cotenant has acquired sole title to the cotenancy property through a Ioreclosure, tax sale, or other
involuntary sale
i. Courts may treat them as Iiduciaries
ii. Usually they have no obligation to aIIirmatively saIeguard the rights oI other cotenants
2. Right to Possession
a. Each CT (Co-Tenant) has an equal right to possession and enjoyment oI the whole property, regardless oI
the size oI his or her Iractional share
b. Majority Rule No #ent Liability Even a cotenant in exclusive possession oI the property is not liable
to the other cotenants Ior rent
c. Exception OUS%ER -
i. Occurs when a cotenant in possession reIuses the request oI another cotenant to share possession
oI the land
1. Ex: holds sole possession oI B; B appears at the Iront gate to B and demands that
unlock the gate to allow him to enter and use the land;
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ii. II rejects B`s Demand, he has ousted B
1. B then as an ousted cotenant, is entitled to #ecover his pro rata share oI B`s Fair #ental
'alue Irom
2. II B simply demands that pay him rent, NO OUSTE# occurs when reIuses, b/c B
has Iailed to DEMND shared possession
3. Right to Rents and Profits
a. Each CT is entitled to a pro rata share oI rents received Irom a 3
rd
party Ior use oI the land
i. Ex: , B, C each own equal shares as TIC in B; receives 30,000 in rental income Irom X Ior
use oI the property
1. B and C are each entitled to 10,000 Irom
ii. II reIuses to Pay, they may bring an Accounting action against to Iorce payment
b. Same applies iI a CT exploits natural resources on the cotenancy property like minerals or timber

4. Liability for Mortgage and %ax Payments
a. ll CTs are obligated to pay their proportionate share oI Mortgage, Tax, ssessments, and other
payments that could give rise to a lien against the property iI unpaid
i. Payments considered necessary to prevent the estate Irom being lost by Ioreclosure
b. II 1 CT pays more than a pro rata share, he may recover the excess in a Contribution Action
i. Ex: K and L are TIC each owning share; iI B is subject to 2,000 mortgage and K is Iorced to
cover these costs Ior one year (24,000) b/c L reIuses to pay
1. K is entitled to recover halI oI his payments (12,000) Irom L
ii. In most states iI the CT is in Sole possession oI the property; that CT Cannot recover Ior these
payments unless they exceed the reasonable rental value oI the property
1. Ex: iI B rental value is 30,000 K would not be entitled to claim the mortgage Irom L
iI K was in sole possession K would have to pay the Iull 24,000

5. Liability for Repair and Improvement Costs
a. Majority #ule CT who pays Ior repairs or improvements to the common property is not entitled to
contribution Iorm the other CTs, absent a prior agreement
i. Ex: D a JT in a home B; pay 15,000 to repair the rooI, he cannot sue his CTs E and F to recover
their 10,000 (5,000 each) pro rata share
ii. CTs exercising their Business Judgment may disagree over the necessity, character, extent, and
cost oI repairs and improvements courts don`t want to deal w/ this shit
b. Minority llows Ior compensation Ior Necessary #epairs
i. The remedy Ior this situation is Partition

6. Partition
a. ny cotenant who cannot agree w/ another can permanently end the relationship
i. CT like D will receive a credit Ior the excess cost oI reasonable repairs he has borne
b. Improvements are treated similarly
i. When partitioning the property, the court will either assign the improved portion oI the property
to the improving CT iI Ieasible or
ii. ward that CT a Credit Ior the added property value produced by the improvement
7. Liability for Waste
a. CT is liable Ior Waste when he uses the common property in an Unreasonable manner that Causes
Permanent Injury
i. Traditional things that would constitute waste like (extraction oI minerals or cutting oI timber) are
treated as sources oI income (like rent Irom 3
rd
Parties) Ior which that CT must account to the
other CTs
1. The Traditional penalties Ior waste are not imposed

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